Court rejects request for permission to serve process by e-mail

In the case of Ehrenfeld v. Bin Mufouz, the U.S. District Court for the Southern District of New York has refused Ehrenfeld’s request to allow service of process on Bin Mufouz, a Saudi Arabian national, by e-mail. Although service of process by e-mail is permissible in certain circumstances, Ehrenfeld failed to show that in this case correspondence by e-mail would be reasonably calculated to notify Bin Mufouz of the action.

Ehrenfeld wrote a book about the evils of funding terrorism. Bin Mufouz, a resident of Saudi Arabia, took offense to statements Ehrenfeld made about him in the book and filed a defamation lawsuit in the U.K. Ehrenfeld never appeared in that action, and Bin Mufouz threatened to enforce a default judgment against Ehrenfeld.

In response to those threats, Ehrenfeld filed this suit in federal court in New York, seeking a declaratory judgment that Bin Mufouz could not enforce the U.K. default judgment against her. Being unable to obtain service of the complaint and summons, Ehrenfeld filed a motion for leave to obtain service by alternate means pursuant to Fed. R. Civ. P. 4(f)(3). Rule 4(f) provides for service on foreign individuals, and Rule 4(f)(3) specifically allows service by “means not prohibited by international agreement as may be directed by the court.”

The court noted that there is no international agreement addressing service of process on persons in Saudi Arabia. Thus, service could be made in any manner the court would approve. Ehrenfeld proposed various ways in which service might be made, including via e-mail to an address found on Bin Mufouz’s website.

The court refused to allow service of process by e-mail. It noted that “although courts have upheld service via e-mail, those cases involved e-mail addresses undisputedly connected to the defendants and that the defendants used for business purposes.” In this case, Ehrenfeld had not persuaded the court that Bin Mufouz maintains the website on which the e-mail address was found, that he checks that e-mail account, or that he would be likely to receive information transmitted to that e-mail address. The court found that the e-mail address was used only as an informal means of accepting requests for information rather than for receiving important business communications.

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Evan Brown is an attorney in Chicago helping clients identify and manage issues concerning technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).